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EXHIBIT 4.6
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is
made and entered into as of November 26, 1996, between WASHINGTON MUTUAL, INC.
(the "Company"), a corporation organized and existing under the laws of the
state of Washington, and its successors and assigns (the "Issuer"), and XXXXXX
TRUST AND SAVINGS BANK, a banking corporation duly organized and existing under
the laws of Illinois, as trustee, (the "Trustee"). Capitalized terms used in
this Supplemental Indenture without definition have the meanings assigned to
them in the Indenture.
RECITALS
The Company and the Trustee entered into an Indenture (the
"Indenture") dated as of August 25, 1995, pursuant to which the Company issued
its senior unsecured notes in the original principal amount of $150,000,000
(the "Notes").
Pursuant to Section 902 of the Indenture, the Company and the Trustee
may, subject to certain exceptions, with the consent of the Holders of not less
than 66-2/3% in principal amount of the Outstanding Securities of each series
affected, enter into one or more supplements to the Indenture for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the rights of the
Holders of Securities of any such series.
The Company desires to amend certain provisions of the Indenture and
has obtained the consent of at least 66-2/3% in principal amount of the Notes
to such amendments.
Accordingly, the Company and the Trustee agree as follows:
ARTICLE ONE
AMENDMENTS
SECTION 101. The following definitions of Section 101 of the
Indenture are amended in their entirety to read as follows:
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"Restricted Subsidiary" means (a) Washington Mutual Bank
("WMB"), and Washington Mutual Bank fsb ("WMFSB") and any successor to
any of the foregoing entities and (b) any other Subsidiary that (i) is
a depository institution (as defined in 12 U.S.C. Section 1461
(b)(1)(A)), a consumer finance company, a mortgage company, an
insurance company, a trust company, an investment advisor or a
securities broker-dealer, or that is otherwise primarily engaged in
the business of providing financial services or in a business that may
be engaged in by a Washington state chartered savings bank (as defined
in RCW 32.04.020) or a federal savings association (as defined in 12
U.S.C. Section 1462(5)) or a subsidiary of any of them and (ii) is
designated by the Company, in its sole discretion, as a "Restricted
Subsidiary" pursuant to a supplemental indenture.
"Subsidiary" means any Corporation of which, at the time of
determination, the Company and/or one or more Subsidiaries owns or
controls directly or indirectly more than 50% of the outstanding
shares of voting stock or other outstanding equity interests entitled
to vote.
SECTION 102. Section 902 of the Indenture is amended in its entirety
to read as follows:
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person
to the Company as permitted by the terms of this Indenture, and the
assumption by any such successor of the due and punctual payment of
the principal and interest on all of the Securities and of the
covenants of the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, for
the benefit of the Holders of Securities of any series, to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to provide for the issuance under this
Indenture of Securities in bearer form (including Securities
registrable as to principal only) and to provide for exchangeability
of such Securities for Securities issued hereunder in fully registered
form, and to make all appropriate changes for such purpose; or
(4) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided that such addition, change or elimination (i)
shall neither (A) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provisions nor (B) modify the right of the Holder of
any such Security with respect
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to such provision or (ii) shall become effective only when there are
no such Securities Outstanding; or
(5) to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided such
action shall not materially adversely affect the interest of the
Holders of Outstanding Securities of any series; or
(6) to establish the form or terms or Securities
of any series pursuant to Section 201 or 301; or
(7) to add an event that will be an Event of
Default under Section 501; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series or to add to or change any of the
provisions of this Indenture necessary to provide for more than one
Trustee; or
(9) to designate any Subsidiary of the Company as
a Restricted Subsidiary.
Any supplemental indenture authorized by the provisions of this
Section 901 may be executed by the Company and the Trustee without the consent
of the Holders of Outstanding Securities of any series, notwithstanding any of
the provisions of Section 902.
SECTION 103. Section 1008 of the Indenture is amended in its entirety
to read as follows:
The Company will not directly or indirectly sell, assign,
transfer, or otherwise dispose of any shares of capital stock of a
Restricted Subsidiary or any securities convertible into shares of
capital stock of a Restricted Subsidiary and it will not permit a
Restricted Subsidiary to issue any shares of its capital stock or any
securities convertible into shares of its stock, except for sales,
assignments, transfers, other dispositions or issuances: (i) which
are for the purpose of qualifying a person to serve as a director;
(ii) the proceeds of which (a) are received in cash or cash
equivalents in an amount equal to the fair market value of such stock
or securities (determined by management in good faith and on a
reasonable basis) and (b) within 90 days thereof, are invested in such
a manner that the consolidated assets of the Restricted Subsidiaries
and any successor to any of the foregoing entities account for at
least 80% of the consolidated assets of the Company, determined as of
the end of the most recent fiscal quarter of the Company; or (iii) to
the Company or any Restricted Subsidiary.
The Company will not permit a Restricted Subsidiary to (a)
merge or consolidate with or into any Person unless, immediately after
giving effect to such merger or
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consolidation, (i) the survivor of such merger or consolidation is a
Restricted Subsidiary or the Company, and (ii) the consolidated assets
of the Restricted Subsidiaries and any successor to any of the
foregoing entities account for at least 80% of the consolidated assets
of the Company; or (b) sell, convey or transfer all or substantially
all of its properties or assets, except (i) to the Company or a
Restricted Subsidiary, or (ii) if, within 90 days of such sale,
conveyance or transfer, the proceeds thereof are invested in such a
manner that the consolidated assets of the Restricted Subsidiaries and
any successor to any of the foregoing entities account for at least
80% of the consolidated assets of the Company, determined as of the
end of the most recent fiscal quarter of the Company.
ARTICLE TWO
MISCELLANEOUS
SECTION 201. Ratification.
Except as expressly modified by the foregoing, the terms and
conditions of the Indenture are hereby ratified and reaffirmed by the
parties hereto and shall continue in full force and effect.
SECTION 202. Governing Law.
This Supplement shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 203. Counterparts.
This Supplement may be executed in several counterparts, each
of which shall be an original and all of which shall constitute one
and the same instrument.
The parties hereto have caused this Supplement to be duly executed, as
of the date and year set forth above.
WASHINGTON MUTUAL, INC.
By: ______________________________
Its: ______________________________
XXXXXX TRUST AND SAVINGS BANK
By: ______________________________
Its: ______________________________
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SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is
made and entered into as of January 6, 1997, between WASHINGTON MUTUAL, INC.
(the "Company"), a corporation organized and existing under the laws of the
state of Washington, and its successors and assigns, and XXXXXX TRUST AND
SAVINGS BANK, a banking corporation duly organized and existing under the laws
of Illinois, as trustee, (the "Trustee"). Capitalized terms used in this
Supplemental Indenture without definition have the meanings assigned to them in
the Indenture.
RECITALS
The Company and the Trustee entered into an Indenture dated as of
August 25, 1995 as hereafter amdended and supplemented, (the "Indenture")
pursuant to which the Company issued its senior unsecured notes in the original
principal amount of $150,000,000 (the "Notes").
The Company and the Trustee entered into a supplemental indenture (the
"First Supplemental Indenture") dated November 26, 1996, pursuant to which
certain provisions of the Indenture were amended.
Pursuant to Section 901(9) of the Indenture, the Company and the
Trustee may, without the consent of the Holders, designate any Subsidiary of
the Company meeting certain requirements a "Restricted Subsidiary" under the
Indenture.
The Company desires to designate American Savings Bank, F.A. a
Restricted Subsidiary as that term is defined in Section 101 of the Indenture.
American Savings Bank, F.A. is a federally chartered savings association and
accordingly satisfies the requirements of a Restricted Subsidiary under the
Indenture.
Accordingly, the Company and the Trustee agree as follows:
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ARTICLE ONE
AGREEMENT
SECTION 101. The Company hereby designates American Savings Bank,
F.A. a Restricted Subsidiary of the Company as that term is defined in Section
101 of the Indenture, and as that term is used throughout the Indenture.
ARTICLE TWO
MISCELLANEOUS
SECTION 201. Ratification.
Except as expressly modified by the foregoing, the terms and
conditions of the Indenture are hereby ratified and reaffirmed by the
parties hereto and shall continue in full force and effect.
SECTION 202. Governing Law.
This Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 203. Counterparts.
This Supplemental Indenture may be executed in several
counterparts, each of which shall be an original and all of which
shall constitute one and the same instrument.
The parties hereto have caused this Supplemental Indenture to be duly
executed, as of the date and year set forth above.
WASHINGTON MUTUAL, INC.
By_____________________________
Its____________________________
XXXXXX TRUST AND SAVINGS BANK
By_____________________________
Its____________________________